The Uniform Public Expression Protection Act: New Jersey’s Recently Enacted Anti-SLAPP Legislation

September 15, 2023
Posted by Afiyfa H. Ellington

On September 7, 2023, New Jersey enacted the Uniform Public Expression Protection Act (“UPEPA”), which provides for an expedited procedural dismissal process against a party who has filed a Strategic Lawsuit against Public Participation (“SLAPP”), a lawsuit brought on by individuals and companies seeking to stop critics from making public statements against them.

The UPEPA applies to an individual or company who files a cause of action in a civil action lawsuit against another individual or company based on the person’s communications on an issue under consideration or review by any branch of government.  The UPEPA also protects the exercise of freedom of speech rights contained in the constitutions of the United States and the State of New Jersey. Read more

Category: SLAPP, UPEPA

BRICK AND STAFFORD CAFRA IMPERVIOUS AND VEGETATIVE COVER CHANGES

July 21, 2023
Posted by Michael P. Castore

On July 3, 2023, DEP issued notices of adoption accepting new and changed State Plan Policy Map Planning Area (“PA”) and Community Development (“CD”) boundaries, approved by the State Planning Commission as the boundaries for Coastal PAs and CAFRA Centers and Nodes, for Brick Township and Stafford Township. The map amendments being implemented by DEP include the entirety of both municipalities, and the changed Coastal PA boundaries will be incorporated into N.J.A.C. 7:7-13 for the purposes of applying impervious and vegetative cover requirements under CAFRA, some of which are described below. Read more

Category: Uncategorized

First Of Its Kind With More To Follow: NJDEP Settlement Proposal Addresses PFAS Contamination

July 11, 2023
Posted by Marc D. Policastro

Co-Authored by Matthew L. Capone

On June 28, 2023, the New Jersey Department of Environmental Protection (“NJDEP”) reached a proposed settlement with Solvay Specialty Polymers USA, LLC (“Solvay”) over Solvay’s discharging of per- and polyfluoroalkyl substances (“PFAS”) and other contaminants into public drinking water during Solvay’s thirty-year operation of a 243-acre chemical manufacturing plant in West Deptford, New Jersey.  Solvay, which was subject to a Statewide Directive regarding PFAS contamination of regional potable groundwater sources by NJDEP in March 2019, could not reach a resolution with the Department on testing and remediation of the Site – resulting in NJDEP filing a lawsuit against the manufacturer in November 2020. Read more

Category: NJDEP, PFAS

NJDEP Creates Avenue for Prioritized RAP Application Review

July 11, 2023
Posted by Marc D. Policastro

Co-Authored by Matthew L. Capone

The New Jersey Department of Environmental Protection (“DEP”) has instituted a new procedure for expediting the evaluation and review of certain Remedial Action Permit (“RAP”) Applications through the creation of a new Application Addendum form, available here.

This Application Addendum form allows a RAP applicant to be considered for prioritized review if the implemented remedial action is among five (5) preapproved categories set forth by the DEP.  These five approved RAP types include:

  • An Initial Soil RAP Application where the restricted use soil remedial action does not include an engineering control;
  • An Initial Soil RAP Application for soil contamination at schools, childcare centers, and residences where a presumptive remedy under N.J.A.C. 7:26E-5.3 is used, but is not required;
  • An Initial Soil RAP Application for soil contamination at schools, childcare centers, and residences where an alternative remedy pursuant to N.J.A.C. 7:26E-5.3 has been pre-approved by the Department;
  • An Initial Soil RAP Application where historic fill is the only area of concern being addressed by the RAP Application; and
  • An Initial Ground Water RAP Application for Monitored Natural Attenuation where the extent of the Classification Exception Area is limited to the property boundaries and no receptors are impacted.

For those sites meeting the above criteria, the DEP is accepting this Application Addendum both as a part of new applications and as an addition to pending applications. For those who have a pending RAP Application, a completed Application Addendum may be emailed to csrr_brap_submissions@dep.nj.gov.

The prioritized Application Addendum is a new development in the RAP Application process, and a situation the attorneys at Giordano, Halleran & Ciesla are continuing to monitor. For a more in-depth review of how this change impacts your site’s RAP Application, contact our environmental law attorneys here.

Category: NJDEP, RAP

PACT Flood Hazard & Stormwater Management Rules Update

June 6, 2023
Posted by Steven M. Dalton

Updating our prior alerts regarding the previously published Flood Hazard and Stormwater Protection Against Climate Threats rule proposal, NJDEP has filed the rule for publication of adoption. With this action, it is anticipated that the notice of adoption will be published in either the July 3 or July 17 New Jersey Register, and the amended rules will become immediately effective upon adoption.  The amendments will substantially change the design flood elevation of regulated fluvial flood hazard areas, implementing up to a 3 foot increase in regulated fluvial flood hazard area elevations statewide. The amendments will also require regulated major development to design stormwater facilities to manage stormwater runoff for both present-day storms, and future storms utilizing year 2100 rainfall projections that are significantly higher than current rainfall data.

A courtesy copy of the draft adoption can be found here.  Of note, NJDEP is proposing to change an element of the grandfathering/legacy approval provisions benefiting projects that are not subject to jurisdiction under the current Flood Hazard rules. The rule proposal provides that projects currently subject to Flood Hazard jurisdiction must have applications deemed administratively and technically complete prior to publication of the adoption notice in the New Jersey Register to be grandfathered.  However, if no Flood Hazard approval is currently required for a project under the existing rules, the rule as revised in the adoption notice (see N.J.A.C. 7:13-2.1(c)4) provides for grandfathering protection for projects currently outside of flood hazard jurisdiction if, prior to adoption, they secured a qualifying local approval under the MLUL, such as site plan or subdivision approval, or a building or construction permit.  If such local approvals are not required, grandfathering may still be achieved if construction commences prior to the effective date of the rules. The initial proposal contemplated grandfathering only if all required approvals were obtained and the regulated activity commenced prior to the effective date of the new rules, which would have made it more difficult for projects that currently do not require a permit to qualify for grandfathering protection.

If you have questions regarding qualification for grandfathering or how the forthcoming rules may affect your project, please contact one of our attorneys.

Category: Flood Hazard Rules, Municipal Land Use Law, NJDEP, Stormwater Rules

U.S. Supreme Court Defines Regulated Freshwater – Wetlands Under the Clean Water Act

May 30, 2023
Posted by Michael J. Gross

On May 25, 2023, the U.S. Supreme Court decided that the Federal Clean Water Act only gives the federal government authority to regulate any relatively permanent body of water connected to traditional interstate navigable waters and only wetlands that have a continuous surface connection with that navigable water making it difficult to determine where the water ends, and the wetland begins. This modifies the standard currently used by the Army Corps of Engineers that requires only a nexus between the wetlands and navigable waters. This decision should not have a significant impact on regulation of freshwater wetlands in the State of New Jersey. The Army Corps of Engineers, under the Clean Water Act, only regulates freshwater wetlands that are located within 1000 feet of the mean high-water line. It does so as does the State of New Jersey, which has authority under its own Freshwater Wetlands Protection Act. The practical impact of this U.S. Supreme Court decision is that it narrows the circumstances in which applicants must obtain approvals from both the Army Corps of Engineers and the New Jersey Department of Environmental Protection.

Category: Army Corps of Engineers, Clean Water Act, NJDEP

PACT 1 Rules Flood Hazard Area and Stormwater Management Regulations

April 25, 2023
Posted by Michael J. Gross

Since these final regulations were not submitted by April 21, 2023, they will not be published in the May 15, 2023 New Jersey Register. The next New Jersey Register in which these regulations can be published is on June 5, 2023. For any pending Flood Hazard Area applications, they must be deemed administratively and technically complete prior to publication in the New Jersey Register to be grandfathered from these new regulations.

Category: Flood Hazard Rules

Revised Flood Hazard Area Control Act & Stormwater Rules to be Proposed on December 2, 2022

November 10, 2022
Posted by Steven M. Dalton

The New Jersey Department of Environmental Protection (“DEP”) has pre-released proposed amendments to its flood hazard and stormwater management rules. These amendments relate only to fluvial flood hazard areas, and are being proposed by DEP in place of the emergency flood hazard rules that were anticipated, but never released, in June 2022. DEP will proceed with formal rulemaking subject to notice and opportunity for public comment, and announced it is targeting the second quarter of 2023 for the amendments to be adopted and made effective. Tidal flood hazard areas will be addressed in a separate rule proposal.

Some of the most significant proposed changes are outlined below.

1. New increased rainfall projections must be used for designing stormwater management facilities and determining calculated base flood elevations. These rainfall numbers are based on projections of rainfall for the year 2100 and a 17% chance that this rainfall will occur.

Read more
Category: Flood Hazard Rules, NJDEP, Stormwater Rules, Uncategorized

NJDEP Publishes New PFAS Standards

October 19, 2022
Posted by David J. Miller

On October 17, 2022, the New Jersey Department of Environmental Protection (“DEP”) published interim soil remediation standards for several hazardous substances often characterized as “emerging contaminants.”  Specifically, DEP established interim standards for perfluorononanoic acid (PFNA), perfluorooctanoic acid (PFOA), hexafluoropropylene oxide dimer acid and its ammonium salt (GenX), perfluorooctanoic acid (PFOA), and perfluorooctane sulfonate (PFOS).  Among these are so-called “Forever Chemicals” – namely, perfluoroalkyl substances (PFAS), a family of over 4,700 compounds that do not occur naturally and do not readily degrade over time.  The new soil remediation standards include criterion based on various exposure pathways for substances included in the rulemaking.

The interim remediation standards were published in the New Jersey Register on October 17, 2022 and can be reviewed in full here.  DEP advises that it considers the interim standards to be in effect for all current and future site remediation cases in New Jersey.  Parties conducting remediation or environmental due diligence in connection with the potential acquisition of property in New Jersey should consult their environmental professionals regarding the impact of the new standards.

Category: NJDEP, PFAS, Soil remediation

NJDEP Announces FHA Emergency Rulemaking

May 25, 2022
Posted by Linda M. Lee

At a Stakeholder meeting on May 25, 2022, the New Jersey Department of Environmental Protection (“NJDEP”) announced emergency rulemaking for the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13 et seq.

The emergency rules will, amongst other things, raise the requirement for design flood elevation in a fluvial flood hazard area.  It raises the Design Flood Elevation by two (2) feet, (will expand the flood plain and require that first floors of all buildings in the flood plain be DEP base flood elevation plus 2’ and from the FEMA 100 year elevation plus 3 feet), and will incorporate the new precipitation projections (year 2100) into stormwater best management practices (“BMP”) designs, which will impact the sizing of stormwater management systems. Any construction must meet the FEMA NFIP standards and relevant sections of the Uniform Construction Code.  Also, existing Verifications, without a related permit, may no longer be valid.  This increase in elevations may also impact the feasibility of a project, because of access issues.  All floodways should remain the same.

NJDEP will not commit to exactly when the emergency Rule will be adopted.  NJDEP intends to adopt the emergency rules in mid-June and recommends that any applications that may be impacted be submitted to NJDEP by Friday, June 10, 2022 in order to remain subject to the existing rules.  That application must be deemed complete upon submission.

If the project is now not within the regulated flood plain, but is within the regulated flood plain under the emergency rules, you must be in construction to be exempt from the emergency rules.  If you have a permit for the construction, you can rely on that permit.  The stormwater provisions would rely on Section 1.6 of the stormwater rules as to whether they will have to comply with the new precipitation projections.

The attorneys at Giordano, Halleran & Ciesla are continuing to monitor this developing situation and stand ready to answer any questions and assist.

Category: FEMA, Flood Hazard Rules, NJDEP, Uncategorized